MonthJuly 2017

Who’s afraid of Sergei Magnitsky?

Who’s afraid of Sergei Magnitsky?” was first published in the Philippine Daily Inquirer on July 22, 2017. 

He is, after all, dead. He died in 2009, according to Russia’s Presidential Human Rights Council, after severe beatings while detained in a Russian prison for abetting tax evasion. But the circumstances of his death led to US legislation carrying his name. Meanwhile, current international concerns over human rights violations and the US election controversy have suddenly thrust to new prominence the laws he inspired.

An auditor in a Moscow legal firm, Magnitsky exposed a $230-million tax fraud scheme that he discovered while engaged as legal adviser for the London-based Hermitage Capital Management (HCM), one of the largest private equity firms investing in Russia. Human rights groups and HCM blamed his arrest and death on government officials who wanted to silence him. The government also subjected the whistle-blower to a posthumous trial to undermine his credibility. The investigators, who included parties implicated in the tax fraud case, concluded that he had been legally arrested and had not been tortured.

Undeterred, Magnitsky’s supporters compiled a list of some 60 officials from the interior ministry, police and tax authorities whom he had identified as involved in the corruption. In 2012, as retribution for Magnitsky’s death, the US Congress passed the Magnitsky Rule of Law Accountability Act. With rare bipartisan support, Congress expanded the scope of the law in 2016, by enacting the Global Magnitsky Human Rights Accountability Act.

The law empowers the president to deny entry into the United States and to freeze the assets of any foreign person or entity found responsible for torture, EJK and other gross violations of internationally recognized human rights, and anyone acting as agent in such activities. Explicitly covered also are government officials and their senior associates responsible for, or complicit in, committing these violations and other acts of significant corruption.

These laws have not been widely enforced, even against Russians; the earlier, narrower law had resulted in action against 18 Russian individuals. But the ongoing investigation of possible collusion between Donald Trump’s presidential campaign organization and Russian government agents to discredit Hillary Clinton has focused attention on these laws. The mission of the Russian group that met with Donald Trump Jr. was apparently to lobby against the Global Magnitsky Act. Two factors may explain why this law would concern Vladimir Putin and why its repeal or weakening would become an important foreign policy priority.

First, President Trump, writing to Congress last April, said his administration was “actively identifying persons and entities to whom the Act may apply and collecting the evidence necessary to apply it.” He also expressed the intent to “fulfill our commitment to hold perpetrators of human rights abuses and corruption accountable.” While there is no assurance that Trump can deliver on this promise, the issue of Russian meddling in the US election will make it difficult for him to take a stance that appears to soften the law.

Second, other countries have begun the process of passing their own versions of the Global Magnitsky Act. During the third reading of the Criminal Finances Act in the Commons, UK Security Minister Ben Wallace stressed the need, in an increasingly global marketplace, to “make the UK a hostile environment for those seeking to move, hide and use the proceeds of crime and corruption.” In 2015 then Canadian Justice Minister Irwin Cotler tabled a unanimously adopted parliamentary resolution for a Magnitsky Act to protect international human rights as a key foreign policy goal of Canada and the expression of its principles and core values.

In deploying the Magnitsky Act or its equivalent as a weapon against cross-border corruption and human rights violations, governments can apply punitive measures on specific individuals implicated in these crimes without imposing sanctions that indiscriminately punish an entire country. This targeted response sends a clear signal that the rejection of corrupt business practices and respect for human rights have emerged as values shared worldwide.

Those whose current control of political institutions enjoy impunity at home for gross human rights violations, such as complicity in EJK, enjoy no assurance that this control is permanent. Their world will shrink into an increasingly smaller place as more countries reject granting them impunity for their crimes abroad. ###

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

Hate speech for free?

Hate speech for free?” was first published in the Philippine Daily Inquirer on June 24, 2017. 

The capacity for speech and the power it gives to express and receive ideas differentiate the human person from fellow creatures and privileges freedom of expression as a basic human right deserving of constitutional protection. But this fundamental right provides no license to shout “Fire” in a crowded movie theater.

Can purveyors of hate speech directed against people of different ethnic origin, language, religion, political persuasion, or sexual orientation escape culpability for the violence they provoke by invoking their right to free speech? Or should government subject them to the penalties prescribed for the provocateur in the movie theater? What if government agents themselves indulge in hate speech? One study claimed 65-77 percent more killings in Rwandan villages reached by a radio station urging the extermination of the Tutsis it dehumanized as “cockroaches.”

These questions, at a time of more violent civilizational clashes, demonstrate that much work remains for Ifex (International Freedom of Expression Exchange). Celebrating its 25th anniversary, Ifex convened in Montreal last week a panel of international resource speakers led by Agnes Callamard and Oxford University professor Timothy Garton Ash to explore the global challenges facing free speech and human rights.

Callamard served nine years as executive director of Article 19, the international NGO named after the article on freedom of expression in the Universal Declaration of Human Rights. Her mission continues as director of Columbia University’s initiative for Global Freedom of Expression. But Callamard became better known in the Philippines as UN special rapporteur on extrajudicial executions, especially after critical comments on the Duterte war on drugs at a human rights conference in Manila last month triggered a pro-Duterte troll attack.

Filipinos should know more about Professor Ash and his recent book, “Free Speech: Ten Principles for a Connected World.” Ash argues that globalizing forces have made critically urgent a global consensus on the principles to govern the exercise of this right, as immigration constructs increasingly more physically connected but more culturally diverse communities. More people now live, not in small homogenous villages, but in global megacities for which Ash has coined the term “cosmopolis.”

Over 50 percent of Toronto’s population are foreign-born (Filipinos make up the third largest immigrant group.) The third most spoken foreign language in Montreal is Arabic.

In the cosmopolis, ethnically distinct communities, empowered by different languages and comforted by different deities, share common national frontiers and submit to a common political governance system. By collapsing the boundaries of both space and time, the internet has made it possible for immigrants to maintain their connections to the homeland and preserve their cultural identity, thus sharpening and strengthening the differences between them and their host communities.

Some governments would restrain public discussion and debate over religious or racial issues that have historically provoked protracted, violent conflict. But the attempt in the United States to kill legislators, apparently because they belonged to the Republican Party, demonstrates how political color and identities can produce as much violence as skin color and ethnic identities.

Despite the dangers posed by the diversity in the cosmopolis, selectively suppressing dialogue on contentious issues will not promote its long-term health and survival. Ash argues that all human beings, whatever their community, must be free and able to express themselves and “to seek, receive and impart information and ideas, regardless of frontiers.” The majority of the world’s countries that have signed on to Article 19 should similarly respond to the question of “how free should speech be.”

But the effective practice of Article 19 depends also on the response to a second question: “how free speech should be.” How should people exercise the right of free speech? The conduct and the quality of the political discourse, in social media and among government leaders, can raise or reduce the risk of partisan violence. The right of free speech does not demand a duty to be crudely, discreditably disagreeable.

The leaders of the cosmopolis must model the practice of vigorous disagreement without vicious offensiveness. #

Edilberto de Jesus
Edilberto de Jesus is a former Secretary of Education. He is also professor emeritus at the Asian Institute of Management.

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